Tingle v. Harvill

195 S.E.2d 654, 230 Ga. 70, 1973 Ga. LEXIS 815

• Court: Supreme Court of Georgia
• Decided: January 22, 1973
• Docket: 27469
• Status: Published

Opinions

Per curiam.

Mrs. Gladys G. Harvill, as guardian of the person and property of Mary Alice Tingle, filed a complaint on February 24, 1972, against Ben F. Tingle, III, and others, seeking an injunction to restrain the defendants from interfering with her in the discharge of her duties as guardian of the person and property of Mary Alice Tingle, and from encumbering or conveying any of the assets of her ward’s estate, or causing them to be encumbered or conveyed; and the cancellation of a deed executed by the ward to Ben F. Tingle, III, on April 26, 1971, and an agreement between the ward and Ben F. Tingle, III, dated March 30, 1971.

Defensive pleadings were filed. Ben F. Tingle, III, filed a motion to dismiss the complaint, in which several of the grounds related to the proceeding brought by Mary Alice Tingle in the Court of Ordinary of Fulton County for a termination of the guardianship and finding that she was restored to competency.

After a hearing on the issue of interlocutory injunction, the trial judge found that the guardianship was terminated in the court of ordinary on March 9,1971, but no letters of dismission had been granted; that the guardian appealed from this order and the Court of Appeals held that the guardian had standing to appeal an order terminating her ward’s competency (Tingle v. Harvill, 125 Ga. App. 312 (187 SE2d 536)); and that the appeal suspended the judgment terminating the guardianship. The defendants were restrained and enjoined from interfering with the plaintiff in the discharge of her duties as guardian of the person and property of Mary Alice Tingle, and from encumbering or conveying any of her assets, until the further order of the court.

The defendants appealed from the grant of this interlocutory injunction.

When the case was argued orally in this court counsel for both parties informed the court that Mary Alice Tingle died a few days before the argument and prior to the trial of the appeal from the order declaring her competent and terminating the guardianship.

The main argument of the appellants (defendants) is that the appellee had no right to bring an action on behalf of Mary Alice Tingle because the guardianship had terminated prior to the filing of the complaint. It is strenuously argued that the ruling of the Court of Appeals in Tingle v. Harvill, 125 Ga. App. 312, supra, that the guardian had a right to appeal from the finding that the ward was competent, was erroneous.

The appellants are relying on the order terminating the guardianship, but seeking to have this court rule that the decision of the Court of Appeals in that case is erroneous. The decision of the Court of Appeals, ruling that the guardian could appeal, has become the law of the case as to privies of Mary Alice Tingle, and that decision is binding on Ben F. Tingle, III, her grantee, who is the only party against whom cancellation is sought.

Under the evidence at the hearing the trial judge did not err in granting interlocutory injunction until the appeal from the finding of competency of Mary Alice Tingle could be tried, and it could be determined whether the appellee was entitled to represent her as guardian in the action.

No ruling has been made in the trial court as to the effect of the death of the ward on the pendency of the appeal from the finding of her competency, and no ruling is made in this case on that issue.

Judgment affirmed.

All the Justices concur, except Mobley, C. J, and Undercofler, J., who dissent.